Opinion
FA186077828S
03-08-2019
Cori ANDERSON v. Brett ANDERSON
UNPUBLISHED OPINION
OPINION
GOULD, J.
The defendant, Brett Anderson, filed a motion to dismiss the present action for a dissolution of marriage and child custody filed by the plaintiff, Cori Anderson, on August 16, 2018. The defendant argues that the present action should be dismissed because the court lacks personal jurisdiction over him. In the alternative, the defendant argues that the present action should be dismissed pursuant to the doctrine of forum non conveniens. If the court does not dismiss this action, then the defendant argues that the court lacks subject matter jurisdiction to enter custody orders; thus, the custody portion of the present action should be dismissed. The court heard oral argument on December 18, 2018, and reserved its decision at that time.
FACTUAL BACKGROUND
The plaintiff filed the present action on August 16, 2018. In her amended complaint, filed on August 23, 2018, the plaintiff alleges the following: the plaintiff and the defendant were married in Fairfield, Connecticut on September 2, 2012. The marriage has broken down irretrievably and the plaintiff seeks a dissolution of marriage. The parties have three minor children who were born during the marriage: James, who is four years old; and twin boys, Caleb and Isaac, who are two years old. The plaintiff seeks joint custody of the three minor children, with supervised visitation with the defendant, and child support.
In her affidavit concerning children, filed on September 19, 2018, the plaintiff averred the following: James lived in White River Junction, Vermont for the first one and one-half years of his life, then moved to Fargo, North Dakota for two years. Caleb and Isaac lived in Fargo, North Dakota, for the first one and one-half years of their lives. The three minor children have lived in Stratford, Connecticut since July 14, 2018.
The defendant filed the present motion to dismiss and memorandum in support on September 19, 2018. The defendant also filed an affidavit in support of his motion, in which he avers the following: The parties lived in Vermont both before and after their wedding. The parties have lived in Fargo, North Dakota since August 2016. In Fargo, the parties lived in a rental home, where both parties were listed on the lease until September 7, 2018. The parties moved to Fargo because of the plaintiff’s job at Concordia College in Moorhead, Minnesota. Fargo and Moorhead are in close proximity to one another. James’ childcare center, Cobbler Kids Childcare Center, where he was enrolled from August 2016 through August 2018, is also located in Moorhead. Caleb and Isaac’s childcare center, Our Redeemer Childcare Center, is also located in Moorhead. Caleb and Isaac were scheduled to begin attending Cobbler Kids Childcare Center with James in July 2018. The parties paid for their enrollment through August 2018.
In Moorhead, the parties worked with both a marital counselor and their individual counselor. In Fargo, the parties and their three minor children attended services and were involved in Sojourn Church. Additionally, the three minor children saw their regular doctors in Fargo, including their pediatrician; ear, nose, and throat specialist; dentist; dermatologist; and chiropractor. James and Caleb also were being treated by an allergist, whom the plaintiff spoke with in September 2018, regarding their ongoing treatment and care. The parties filed joint tax returns in 2016 and 2017, in North Dakota. Both parties have North Dakota driver’s licenses and registered their vehicles in North Dakota.
The plaintiff’s parents live in Connecticut. From June 30 through July 14, 2018, the parties and their three minor children were in Connecticut on a planned family vacation to visit the plaintiff’s parents. The parties and their three minor children were planning to visit the defendant’s family in Wisconsin from July 14 through 21, 2018. On July 13, 2018, however, the plaintiff informed the defendant that she and their three young children would not be travelling with the defendant to Wisconsin. On July 24, 2018, the plaintiff informed the defendant that "she was setting up shop" in Connecticut. On August 4, 2018, she informed the defendant that she and their three minor children would not be returning to North Dakota.
The defendant commenced an action for dissolution of marriage in Fargo, North Dakota. A marshal attempted to serve the plaintiff on August 1, 2018, but was unsuccessful. On August 3, 2018, a marshal attempted service on the plaintiff while the plaintiff and the three minor children were on a skype call with the defendant. During the skype call, the plaintiff walked away briefly and abruptly ended the skype call when she returned. The following day, the plaintiff and the defendant were talking with their marriage counselor, when the plaintiff acknowledged her awareness that the defendant was attempting service of divorce papers. On August 14, 2018, the defendant was served in-hand with respect to the present action. The defendant has never lived, filed taxes, worked, banked, or earned income in Connecticut. The defendant, however, was married in Connecticut and has visited Connecticut to see the plaintiff’s family.
The plaintiff attached to his affidavit a copy of the summons, complaint (North Dakota complaint), and confidential information form from the dissolution of marriage action he filed in North Dakota as exhibit A. In the North Dakota complaint, the defendant alleges that he is unemployed, the plaintiff is employed by Concordia College, and he relies on the plaintiff for financial support.
The plaintiff filed a memorandum in opposition of the defendant’s motion to dismiss on October 19, 2018. The plaintiff attached to her memorandum an affidavit in support of her opposition. The plaintiff averred to the following additional information that was not included in the complaint, affidavit concerning children, or in the defendant’s affidavit. Since the parties were married, the defendant has visited Connecticut approximately twenty times. Specifically, the defendant has visited Connecticut twice since the parties moved to Fargo in 2016. On July 7, 2018, the defendant attempted to commit suicide while in Connecticut visiting the plaintiff’s family. The defendant was hospitalized at Milford Hospital and sought treatment at Natchaug Hospital from July 7-12, 2018. After this incident, the defendant returned to Connecticut from July 21 through 23, 2018 to visit the plaintiff and their three minor children, but stayed at a hotel in Shelton, Connecticut and only visited with the three minor children in public places.
In January 2018, the defendant became unemployed. In February 2018, the plaintiff learned that Concordia College would be reducing its faculty size. The parties decided to seek new employment on the east coast or in Minneapolis, Minnesota or St. Paul, Minnesota to be closer to one of their families. The plaintiff attached copies of emails, exhibits A and B, the defendant sent to friends and the plaintiff’s father expressing the parties’ intention to move to the east coast. The defendant has not found suitable, long-term employment since becoming unemployed in January 2018. The plaintiff interviewed for an assistant professor position at Wesleyan University while the parties were on their planned family vacation in Connecticut from June 30 through July 14, 2018. The plaintiff was offered the position with her contract beginning on January 1, 2019, and accepted on July 16, 2018. On September 6, 2018, the plaintiff signed a contract with Wesleyan University to begin teaching on September 1, 2018, instead of January 2019. A copy of this contract is attached to the plaintiff’s affidavit as exhibit C. The plaintiff explained that the change in contract was due to increased course demands.
The plaintiff decided to remain in Connecticut following the defendant’s mental health issues and threats of harming the parties’ three minor children in early July 2018. The plaintiff travelled to Fargo from July 24 through 25, 2018, to move her and the three minor children’s belongings to Connecticut. The plaintiff has established medical care with new doctors in Connecticut for the three minor children, in addition to securing them child care in Connecticut.
DISCUSSION
"A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ... When a ... court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light." (Internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 117, 891 A.2d 106 (2006). A motion to dismiss "shall always be filed with a supporting memorandum of law and, where appropriate, with supporting affidavits as to facts not apparent in the record ... If an adverse party objects to this motion he or she shall ... file ... a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record." Practice Book § 25-13. "When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction ... In order to sustain the plaintiff’s burden, due process requires that a trial-like hearing be held, in which she has an opportunity to present evidence and to cross examine adverse witnesses, unless, as with summary judgment, no genuine issue as to a material fact exists." (Citations omitted; internal quotation marks omitted.) Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008).
In the present action, the defendant argues that the court lacks personal jurisdiction over him because he does not have minimum contacts with Connecticut. Additionally, even if he does have minimum contacts with Connecticut, Connecticut is an inconvenient forum because he filed an action for dissolution of marriage in North Dakota and a majority of the witnesses are located in the Fargo area. In the alternative, the defendant argues that the court does not have subject matter jurisdiction to enter orders regarding the support of the parties’ minor children. The court will address each issue in turn, and set forth additional facts and arguments as needed.
I. Due Process
"The due process clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties or relations." Cashman v. Cashman, 41 Conn.App. 382, 389, 676 A.2d 427 (1996). The court engages in a two-part inquiry to determine the propriety of exercising personal jurisdiction over a nonresident defendant. "The trial court must first decide whether the applicable long-arm statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process." (Internal quotation marks omitted.) Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008). Here, the defendant does not challenge that the requirements for personal jurisdiction under this state’s long-arm statute have been met; he argues, rather, that jurisdiction over him would violate due process.
"The due process test for personal jurisdiction has two related components: the minimum contacts inquiry and the reasonableness inquiry. The court must first determine whether the defendant has sufficient contacts with the forum state to justify the court’s exercise of personal jurisdiction ... For purposes of this initial inquiry, a distinction is made between specific jurisdiction and general jurisdiction. Specific jurisdiction exists when a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum; a court’s general jurisdiction, on the other hand, is based on the defendant’s general business contacts with the forum state and permits a court to exercise its power in a case where the subject matter of the suit is unrelated to those contacts." (Internal quotation marks omitted.) Panganiban v. Panganiban, 54 Conn.App. 634, 638-40, 736 A.2d 190 (1999).
"The twin touchstones of due process analysis under the minimum contacts doctrine are foreseeability and fairness. The foreseeability that is critical to due process analysis ... is that the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being hauled into court there ..." Jepson v. Jepson, Superior Court, Docket No. FA-97-0156588-S (April 27, 1998, Tierney, J.) (22 Conn.L.Rptr. 171), citing Phoenix Leasing v. Kosinski, 47 Conn.App. 650, 654 (1998). "[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws." Abrams v. Abrams, Superior Court, judicial district of Danbury (December 21, 1994, Moraghan, J.) (13 Conn.L.Rptr. 346). "As long as it creates a substantial connection with the forum state, even a single act can support jurisdiction." Panganiban v. Panganiban, supra, 54 Conn.App. 639. "The court must look at the totality of the defendant’s conduct and connection with this state and determine whether the party could have reasonably anticipated being hauled into court in Connecticut." Cashman v. Cashman, supra, 41 Conn.App. 389.
In the present case, the defendant could have reasonably anticipated being hauled into court in Connecticut because: (1) he married the plaintiff here; (2) he has visited here approximately twenty times over the course of the parties’ marriage, for up to two weeks at a time; (3) he was hospitalized here for six days in 2018; (4) the plaintiff’s parents, who have spent significant time caring for the parties’ children, reside here; (5) the plaintiff, who is the only working parent, is employed here; and (6) his children reside here. Such contacts, particularly the marriage, the multiple yearly visits, and his hospitalization, show that the defendant has purposely availed himself of the benefits and protection of Connecticut’s laws. See Burnham v. Superior Court of California, County of Marin, 495 U.S. 604, 637, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990) ("By visiting the forum State, a transient defendant actually avails himself ... of significant benefits provided by the State. His health and safety are guaranteed by the State’s police, fire, and emergency medical services; he is free to travel on the State’s roads and waterways; he likely enjoys the fruits of the State’s economy as well" [citation omitted; internal quotation marks omitted]).
Moreover, the quantity and quality of the defendant’s foregoing contacts, render the present case distinguishable from other Superior Court cases wherein the court has granted a defendant’s motion to dismiss for lack of minimum contacts. For instance, two of the three factors that the court pointed to in Jepson as conspicuously absent (i.e., that the wife had never been in Connecticut, the parties were not married in Connecticut, and the parties did not agree that their minor children would live in Connecticut), are present here.
Furthermore, unlike in Seamans v. Seamans, Superior Court, judicial district of Hartford, Docket No. FA-06-4025800-S (February 14, 2017, Simon, J.) , where the parties and their children had relinquished all of their substantial contacts with Connecticut approximately five years prior to the commencement of the action, the defendant’s contacts are recent. Similarly, unlike the defendant in Seamans, the defendant here does not own real property in the state in which he resides, nor does he have a job there.
"The second stage of the due process inquiry asks whether the assertion of personal jurisdiction comports with traditional notions of fair play and substantial justice— that is, whether it is reasonable under the circumstances of the particular case ... The Supreme Court has held that the court must evaluate the following factors as part of this reasonableness analysis: (1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiff’s interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies." (Citations omitted; internal quotation marks omitted.) Panganiban v. Panganiban, supra, 54 Conn.App. 638-40.
Although it is certainly a burden upon anyone to cross the country to defend oneself in court, the defendant here, as in Panganiban, has obtained counsel and has demonstrated his ability to defend himself in Connecticut through the filing of this motion to dismiss. Additionally, the defendant has visited Connecticut, at least as recently as the end of July of 2018, which indicates that requiring him to appear for legal proceedings in Connecticut would not place an undue burden on him. See Burnham v. Superior Court of California, County of Marin, supra, 495 U.S. 638-39 ("That the defendant has already journeyed at least once before to the forum ... is an indication that suit in the forum likely would not be prohibitively inconvenient"). Second, because the marriage was entered into in Connecticut, the plaintiff, who is the only working parent, is employed here, and the kids are currently residing here, the state certainly has an interest in adjudicating the parties’ marital status.
Third, the plaintiff has an interest in dissolving the marriage in Connecticut, where she currently works, resides with her children, and has her parents as a resource. Finally, because "[a]ll states share a social policy interest in the support of the families within their borders," factor five also supports this court’s exercise of personal jurisdiction over the defendant. Panganiban v. Panganiban, supra, 54 Conn.App. 641. Accordingly, even though the parties will also have to seek relief in another forum, adjudication of the dissolution action in Connecticut is reasonable and comports with traditional notions of fair play and substantial justice. Thus, the plaintiff has met her burden of proving the court’s jurisdiction over the defendant for the dissolution of the marriage. See Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007).
II. Forum Non Conveniens
The defendant argues that Connecticut is an inconvenient forum and that this court should dismiss the present action so that it can be adjudicated in its entirety in North Dakota. "As a common-law matter, the doctrine of forum non conveniens vests discretion in the trial court to decide where trial will best serve the convenience of the parties and the ends of justice ... [T]he central principle of the forum non conveniens doctrine [is] that unless the balance is strongly in favor of the defendant[s], the [plaintiffs’] choice of forum should rarely be disturbed ... [I]nvocation of the doctrine is a drastic remedy ... which the trial court must approach with caution and restraint ... The overriding inquiry ... is not whether some other forum might be a good one, or even a better one than the [plaintiffs’] chosen forum. The question to be answered is whether [the plaintiffs’] chosen forum is itself inappropriate or unfair because of the various private and public interest considerations involved ... Accordingly, the trial court, in exercising its structured discretion, should place its thumb firmly on the [plaintiffs’] side of the scale, as a representation of the strong presumption in favor of the [plaintiffs’] chosen forum, before attempting to balance the private and public interest factors relevant to a forum non conveniens motion." (Internal quotation marks omitted.) Temlock v. Temlock, 95 Conn.App. 505, 513-14, 898 A.2d 209 (2006).
The Connecticut Supreme Court has provided the following instructions with regard to analyzing claims of forum non conveniens: "First, the court should determine whether an adequate alternative forum exists that possesses jurisdiction over the whole case ... Second, the court should consider all relevant private interest factors with a strong presumption in favor of— or, in the [appropriate circumstances], a weakened presumption against disturbing— the plaintiffs’ initial choice of forum ... Third, if the balance of private interest factors is equal, the court should consider whether any public interest factors tip the balance in favor of trying the case in the foreign forum ... Finally, if the public interest factors tip the balance in favor of trying the case in the foreign forum, the court must ... ensure that [the] plaintiffs can reinstate their [action] in the alternative forum without undue inconvenience or prejudice. Id., 515-16.
Here, an adequate alternative forum exists that possesses jurisdiction over the whole case: North Dakota. Second, with regard to the private interest factors, the Connecticut Supreme Court has instructed the courts to consider "(1) the relative ease of access to sources of proof; (2) the availability of compulsory process for the attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses; (3) the possibility of viewing the accident scene if such viewing is appropriate to the action; (4) the enforceability of a judgment; (5) the relative advantages and obstacles to fair trial; and (6) all other practical problems that make trial of a case easy, expeditious and inexpensive." Id., 515. In the present case, with regard to the first factor, the proof that will be relevant for the dissolution action largely consists of financial documents, which are just as easily accessible to a Connecticut court as they are to a North Dakota court. With regard to testimony from the parties’ marriage counselor, a deposition can be conducted and a transcript provided to this court. As to the enforceability of a judgment of this court, it will be given full faith and credit. Additionally, requiring the plaintiff, who is the only party currently employed and who has been acting as the primary caregiver to the parties’ children, to take additional time off from work to travel to North Dakota is a practical problem that weighs in favor of dealing with the dissolution action in this court.
Because the balance of private factors is not equal, the court need not consider the public interest factors. Accordingly, the court declines to dismiss the dissolution action on the ground of forum non conveniens.
III. Child Custody
The defendant argues that the court does not have subject matter jurisdiction over the custody portion of the present action for the following reasons. First, Connecticut was not the home state of the three minor children at the time the present action was commenced because they had not lived in Connecticut for six consecutive months prior to the commencement of the present action. Additionally, the plaintiff determined that the children would continue to reside with her in Connecticut without consulting the defendant. The three minor children’s home state was North Dakota when the present action was commenced. Second, the three minor children’s only connection with Connecticut is that they are physically present in this state. Third, Connecticut lacks substantial evidence as to the care, protection, and training of the three minor children, and personal relationships with the three minor children.
In her memorandum in opposition, the plaintiff argues that Connecticut has jurisdiction over the child custody portion of the present action for the following reasons. First, neither Connecticut nor North Dakota is the home state of the three minor children because they were living in Connecticut for one month immediately preceding the filing of the present action. Additionally, no other state has jurisdiction over the custody portion of the present action. Second, the plaintiff and the three minor children have a significant connection with Connecticut because the plaintiff lived in Connecticut during her childhood and was married in Connecticut. Additionally, the three minor children’s maternal grandparents live in Connecticut and spend a substantial amount of time with the maternal grandparents. Thus, the plaintiff can provide substantial evidence as to the care, protection, and training of the three minor children in Connecticut. Moreover, due to their ages, the three minor children have not formed substantial connections in North Dakota.
The court has subject matter jurisdiction over child custody matters pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), General Statutes § 46b-115 et seq. In re Iliana M., 134 Conn.App. 382, 389-90, 38 A.3d 130 (2012). General Statutes § 46b-115k provides in relevant part: "(a) ... [A] court of this state has jurisdiction to make an initial child custody determination if: (1) This state is the home state of the child on the date of the commencement of the child custody proceeding; (2) This state was the home state of the child within six months of the commencement of the child custody proceeding, the child is absent from the state, and a parent or person acting as a parent continues to reside in this state; (3) A court of another state does not have jurisdiction under subdivisions (1) or (2) of this subsection, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child’s care, protection, training and personal relationships; (4) A court of another state which is the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under a provision substantially similar to [General Statutes § ] 46b-115q or [General Statutes § ] 46b-115r, the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence, and there is substantial evidence available in this state concerning the child’s care, protection, training and personal relationships; (5) All courts having jurisdiction under subdivisions (1) to (4), inclusive, of this subsection have declined jurisdiction on the ground that a court of this state is the more appropriate forum to determine custody under a provision substantially similar to [§ ]46b-115q or [§ ]46b-115r; or (6) No court of any other state would have jurisdiction under subdivisions (1) to (5), inclusive, of this subsection. (b) Subsection (a) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state. (c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination."
Both North Dakota and Connecticut define "home state" as "the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding ... A period of temporary absence of any such person is counted as part of the period ..." General Statutes § 46b-115a(7); N.D. Cent. Code. Ann. § 14-14.1-01(6) (West 2018). Additionally, both states define "commencement" as "the filing of the first pleading in a proceeding." General Statutes § 46b-115a(5); N.D. Cent. Code. Ann. § 14-14.1-01(4) (West 2018).
Courts have previously concluded that "home state for purposes of initial jurisdiction should be construed as not limited to the time period of six consecutive months immediately before the commencement of a child custody proceeding. Instead, the applicable time period to determine ‘home state’ in such circumstances is within six months before the commencement of the child custody proceeding ... This interpretation would serve to reconcile the two conflicting provisions, implement the primary purpose of the UCCJEA, and avoid the result of rendering subsection two of ... § 46b-115k(a) meaningless. To hold otherwise would make subsection two virtually identical in meaning to subsection one. Rather, subsection two appears specifically intended to address ... when children move with a parent from a state with home state status to another state the former state does not lose its home state status if the other parent resides there until the children have lived in the new state for six months, at which point that state has acquired home state status. Such interpretation is also consistent with the notion contained in the definition of ‘home state’ that ‘temporary absence’ from a state will not defeat home state status-i.e., until parent and child have lived in the new state for at least six months, their departure from the previous state may be construed as temporary absence. In view of the fact that ... UCCJEA seeks to avoid conflicting custody decisions by according primary emphasis to the child’s home state, the obvious and logical purpose of subsection two is to extend home state status after the child has left the state but one parent has stayed behind. The drafters’ own comments to the UCCJEA confirm this intent ..." (Citation omitted; internal quotation marks omitted.) Dybowski v. Skiba, Superior Court, judicial district of Fairfield, Docket No. FA-07-4020128-S (October 12, 2007, Owens, J.T.R.) (44 Conn.L.Rptr. 305), citing Veecock-Little v. Little, Superior Court, judicial district of New Haven, Docket No. FA-06-4020140-S (August 18, 2006, Frazzini, J.) (42 Conn.L.Rptr. 75).
In the present action, it is undisputed that Connecticut was not the home state of the three minor children at the time this action was commenced. The record shows that the three minor children lived with the parties in North Dakota from August 2016 through mid-July 2018, when, as the plaintiff avers, the children began residing in Connecticut. The present action was filed on August 16, 2018. Thus, the three minor children did not live in Connecticut for six consecutive months immediately preceding the filing of the present action and Connecticut cannot be considered the three minor children’s home state pursuant to § 46b-115a(7).
Pursuant to § § 46b-115k(2) & (3), however, North Dakota was the three minor children’s home state in July 2018. The North Dakota action was commenced on July 28, 2018, when the defendant filed his complaint, even though the plaintiff was not served until August 20, 2018. There is a period of approximately one month, where the children were on vacation in Connecticut, between the three minor children’s residing in North Dakota and their residing in Connecticut. The three minor children, however, resided in North Dakota for almost two years. Additionally, the plaintiff did not inform the defendant that she would remain in Connecticut until July 24, 2018, and continued to represent that her and their three minor children would be returning to North Dakota until August 4, 2018. The court determines that this time period is merely a temporary absence from North Dakota because the plaintiff continued to represent to the defendant that she was returning to North Dakota, the plaintiff continued to be named on the parties’ home lease through September 2018, and the children were all registered at Cobbler Kids Childcare Center for August 2018, and their tuition there was fully paid.
Moreover, pursuant to § 46b-115k(2), even though the three minor children are no longer physically present in North Dakota, the defendant continues to reside in North Dakota. Accordingly, North Dakota was the three minor children’s home state "within six months of the commencement of the child custody proceeding" because it was their home state up until less than one month prior the filing of the present action. Additionally, it was the children’s home state within less than one week before the filing of the North Dakota action. Therefore, North Dakota has jurisdiction over the custody portion of the present action pursuant to § § 46b-115k(2) & (3) and pursuant to the UCCJEA as codified in North Dakota, N.D. Cent. Code. Ann. § 14-14.1-12(1)(a) (West 2018).
Determining North Dakota has jurisdiction over the child custody portion of the present action is in keeping with the purpose of UCCJEA. "The purposes of the UCCJEA are to avoid jurisdictional competition and conflict with courts of other states in matters of child custody; promote cooperation with the courts of other states; discourage continuing controversies over child custody; deter abductions; avoid re-litigation of custody decisions; and to facilitate the enforcement of custody decrees of other states ... The UCCJEA addresses inter-jurisdictional issues related to child custody and visitation." (Internal quotation marks omitted.) In re Iliana M., supra, 134 Conn.App. 390. In the present action, the undisputed evidence shows that the parties were contemplating moving to the east coast at some point, but that a decision as to where and when was never made. Moreover, the defendant avers that he never agreed to and continues to disagree with the three minor children living in Connecticut with the plaintiff. The undisputed evidence before the court is that the plaintiff unilaterally accepted a job in Connecticut while on vacation in Connecticut, then continued to represent to the defendant that she and the three minor children would return to North Dakota. If the court were to allow a unilateral decision to relocate the three minor children shortly before filing a petition for child custody to terminate the home state status of the previous state, the court would be acting in contradiction to one of the purposes of UCCJEA.
Finally, since North Dakota was the three minor children’s home state at the commencement of both suits, Connecticut can only have jurisdiction over the child custody portion of the present action if North Dakota declines jurisdiction. See General Statutes § 46b-115k(4) ("[a] court of another state which is the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum"). In staying the North Dakota case, North Dakota has not declined to exercise jurisdiction. Accordingly, the court agrees with the defendant that Connecticut does not have subject matter jurisdiction over the child custody portion of the present action and North Dakota has jurisdiction over the child custody portion of the present action pursuant to § 46b-115k(2) and N.D. Cent. Code. Ann. § 14-14.1-12(1)(a) (West 2018).
CONCLUSION
For the foregoing reasons, the court denies the motion to dismiss in part and grants it in part. The court denies the motion to dismiss as to the marital dissolution portion of the present action because the court has personal jurisdiction over the defendant and the exercise of personal jurisdiction does not offend the principles of due process and forum non conveniens. The court grants the motion to dismiss as to the child custody portion of the present action because this court lacks subject matter jurisdiction to enter initial child custody orders at this time.